w.p.(c) no. 1583/2014

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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND

ARUNACHAL PRADESH)

W.P.(C) No. 1583/2014

PETITIONERS:

1. Dharampal Satyapal Ltd., A company incorporated under the provisions of the Companies Act, 1956, having its registered office situated at S.P. Mukherjee Road, New Delhi and having its factory at 39, Bamunimaidan Industrial Estate, Bamunimaidan, Guwahati, Assam, represented by its authorized representative, namely, Sri Shantanu Kumar Sarma, son of Sri Tarak Chandra Sarma, resident of Christian Basti, G.S. Road, Guwahati-781005, District- Kamrup (Metro), Assam. 2. Sri Chander Kant Sharma, Son of Shri Kishori Lal Sharma, Resident of House No.74, Asiad Village Complex, New Delhi-49.

By Advocates : Mr. D.K. Mishra, Sr. Advocate, Mr. S. Pathak, Mr. A.K. Sharma, Mr. M. More, Ms. B. Sharma. RESPONDENTS:

1. State of Assam, Represented by the Chief Secretary, Govt. of Assam, Dispur, Guwahati-6.

2. Union of India, Represented through the Secretary, Ministry of Health and Family Welfare, Government of India, Nirman Bhawan, ‘C’ Wing, New Delhi-110001.

By Advocates: Mr. D. Saikia, Sr. Addl. Advocate General, Assam, Mr. B. Gogoi, SC, Health Deptt.

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W.P.(C) No. 1824/2014

PETITIONERS:

1. M/s Surendra Enterprises, Transport Chowk, Kaimganj, District- Farukhabad (U.P.), (Prop. Sri Surendra Kumar Agarwal). 2. M/s Ravindra & Company, Railway Road, Kaimganj, District- Farukhabad (U.P.), (A registered partnership firm represented through its partner Sri Surendra Kumar Agarwal).

By Advocates : Mr. D.K. Mishra, Sr. Advocate, Mr. B. Prasad, Ms. P. Baruah. RESPONDENTS:

1. State of Assam, Represented by the Chief Secretary to the Govt. of Assam, Dispur, Guwahati-6.

2. Commissioner and Secretary, Health & Family Welfare Department, Dispur, Guwahati-781006, Assam.

3. Union of India, (represented by the Secretary, Health and Family Welfare Department), New Delhi.


W.P.(C) No. 1996/2014

PETITIONERS:

1. M/s Ganapati Tobacco Store, (Proprietor:- Ghanshyam Ladha), a proprietorial concern having its principal place of business at Marwaripatty, Jorhat-785001, Assam, duly represented by its proprietor- Sri Ghanshyam Ladha, son of Chaganlal Ladha, a resident of Marwari Patty, Jorhat-785001, Assam.

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2. M/s Laduram Champalal, (Proprietor:- Manoharlal Bothra), a proprietorial concern having its principal place of business at Chamber Road, Tinsukia-786125, Assam, duly represented by its proprietor- Sri Manoharlal Bothra, son of late Motilal Bothra, a resident of Chamber Road, Tinsukia-786125, Assam.

3. M/s L.C. Store, (Proprietor:- Ganeshmal Bothra), a proprietorial concern having its principal place of business at Siding Bazar, Tinsukia-786125, Assam, duly represented by its proprietor- Sri Ganeshmal Bothra, son of late Laduram Bothra, a resident of Siding Bazar, Tinsukia-786125, Assam.

4. M/s Shree Vijaylaxmi Enterprise, (Proprietor:- Jethmal Shyam Sukha), a proprietorial concern having its principal place of business at Samser Ali Building, Thana Chariali, Golaghat, Assam, duly represented by its proprietor. 5. M/s Sitaram Kothari, (Proprietor:- Sri Sitaram Kothari), a proprietorial concern having its principal place of business at Old Jail Road, Golaghat, Assam, duly represented by its proprietor. 6. M/s H.B. Enterprise, (Proprietor:- Mrs. Saroj Devi Karnani), a proprietorial concern having its principal place of business at Marwaripatty, Jorhat, Assam , duly represented by its proprietor. 7. M/s Jain Tobacco Store, (Proprietor:- Padam Chand Jain), a proprietorial concern having its principal place of business at Chamber Road, Tinsukia, Assam, duly represented by its proprietor. 8. M/s Dungarmal Kishalal, (Proprietor:- Mahesh Kumar Jaju), a proprietorial concern having its principal place of business at Siding Bazar, Tinsukia, Assam, duly represented by its proprietor. 9. M/s Zubair Ahmed Khan, (Proprietor:- Subair Ahmed Khan), a proprietorial concern having its principal place of business at Coal Road, Dibrugarh, Assam, duly represented by its proprietor. 10. M/s Siwlal Panalal, (Proprietor:- Panalal Sharma), a proprietorial concern having its principal place of business at A.T. Road, Dibrugarh, Assam, duly represented by its proprietor. 11. M/s Subhkaran Dindayal, A partnership firm duly registered under the Indian Partnership Act, 1932 having its principal place of business and office at New State Bank of India, New Amolapatty, Golaghat-785621, Assam, duly represented by

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one of its partners- Sri Subhkaran Pareek, a resident of Old SBI, Amolapatty, Golaghat-785621, Assam.

12. M/s Meghraj Bhawarlal, A partnership firm duly registered under the Indian Partnership Act, 1932 having its principal place of business and office at Chamber Road, Tinsukia, Assam, duly represented by one of its partners- Rajendra Kumar Lunawat, son of late Chunilal Lunawat.

By Advocates : Mr. D.K. Mishra, Senior Advocate, Mr. S.K. Kejriwal, Ms. S. Kejriwal. RESPONDENTS:


2. Secretary, Govt. of Assam, Health & Family Welfare Department, Dispur, Guwahati-6.

3. Deputy Secretary, Govt. of Assam, Health & Family Welfare Department, Dispur, Guwahati-6.

4. Union of India, Represented by its Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, C-Wing, New Delhi-110001.


W.P.(C) No. 2382/2014

PETITIONER:

J.M. Agarwal Tobacco Company, Noniumganj, Kaimganj, 209502, District- Farrukhabad, U.P., A registered partnership firm represented through its authorized representative Sri Prakash Gupta.

By Advocates : Mr.D.K. Mishra, Senior Advocate, Mr. S. Pathak.

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RESPONDENTS:


2. Commissioner and Secretary, Health & Family Welfare Department, Dispur, Guwahati-781006, Assam.

3. Union of India, (Represented by the Secretary, Health & Family Welfare Department), New Delhi.


PIL No. 17/2015

PETITIONER:

Sri Ravindra Nath, Son of late Jagnarayan Ram, R/o RVC Campus, PO- Vill- Akajan, Via Silapathar, District- Dhemaji, Pin-787059.

By Advocates : Mr. S. Dutta, Sr. Advocate, Mr. J. Roy, Mr. P. Hazarika, Miss. S. Kakati, Mr. S. Borthakur. RESPONDENTS:

1. State of Assam, Represented by the Chief Secretary, Govt. of Assam, Dispur, Guwahati-6.

2. Commissioner and Secretary, Health & Family Welfare Department, Dispur, Guwahati-781006.

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3. Union of India, (Represented by the Secretary, Health & Family Welfare Department), New Delhi.


BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN

HON’BLE MR. JUSTICE PARAN KUMAR PHUKAN

Dates of hearing : 23-05-2017, 30-05-2017, 01-06-2017, 20-06-2017, 20-07-2017, 27-07-2017, 17-08-2017 & 24-08-2017. Date of Judgment : 27.10.2017

JUDGMENT & ORDER

(Ujjal Bhuyan, J)

In WP(C) Nos.1583/2014, 1824/2014, 1996/2014 and 2382/2014,

petitioners have challenged the constitutional validity of the Assam Health

(Prohibition of Manufacturing, Advertisement, Trade, Storage, Distribution, Sale

and Consumption of Zarda, Gutka, Pan Masala, etc containing Tobacco and/or

Nicotine) Act, 2013 and have sought for striking down of the same as being

unconstitutional and void. On the other hand, petitioner in PIL No.17/2015 seeks

a direction to the State respondents to implement the provisions of the said Act

in its letter and spirit.

2. We have heard Mr. D.K. Mishra, learned Senior counsel, Mr. S. Pathak,

Mr. A.K. Sharma and Mr. B. Prasad, learned counsel for the petitioners in the writ

petitions, Mr. S. Dutta, learned Senior counsel and Mr. J. Roy, learned counsel

for the PIL petitioner and Mr. D. Saikia, learned Senior Additional Advocate

General, Assam assisted by Mr. B. Gogoi, learned Standing Counsel, Health

Department for the respondents.

3. Mr. Mishra, learned Senior counsel, leading the arguments on behalf of

the petitioners in the four writ petitions, had in the course of the hearing,

highlighted the facts in WP(C) No.1583/2014 as the lead case. Accordingly,

WP(C) No.1583/2014 is being taken up as the lead case.

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4. In this case, petitioner is M/s. Dharampal Satyapal Limited, a company

incorporated under the Companies Act, 1956, having its registered office at New

Delhi and one of its factories at Bamunimaidam Industrial Estate, Guwahati. M/s.

Dharampal Satyapal Limited (petitioner company hereinafter) is engaged in the

business of manufacturing and sale of Pan Masala (without tobacco), Gutka,

Chewing Tobacco including Zafrani Zarda, etc which are industrial produce and

are subject to excise duty. Union Parliament enacted the Cigarettes and other

Tobacco Products (Prohibition of Advertisement and Regulation of Trade and

Commerce, Production, Supply and Distribution) Act, 2003 (for short, COTPA)

and the Tobacco Board Act, 1975. COTPA has been enacted as a comprehensive

law on tobacco products in public interest and to protect public health taking into

account the mandate of Article 47 of the Constitution of India and other

international obligations. COTPA covers all tobacco products including smoking

and smokeless tobacco. While advertisement is prohibited; production, supply,

distribution, trade and commerce in cigarettes and other tobacco products are

regulated.

5. Notwithstanding the presence of COTPA, State legislature of Assam

enacted the Assam Health (Prohibition of Manufacturing, Advertisement, Trade,

Storage, Distribution, Sale and Consumption of Zarda, Gutka, Pan Masala, etc

containing Tobacco and/or Nicotine) Act, 2013 (for short, the Assam Health Act).

20.02.2014 was the date notified for making the Assam Health Act effective.

While excluding smoking tobacco from its purview, Assam Health Act imposes a

complete prohibition in the manufacture, advertisement, storage, trade,

distribution, sale and consumption of chewing tobacco, such as, zarda, gutka,

pan masala etc containing tobacco and/or nicotine.

6. Petitioners have assailed the constitutionality of the Assam Health Act in

this bunch of writ petitions on various grounds. Firstly, it is contended that

Assam legislature lacks legislative competence to enact the Assam Health Act

inasmuch as Parliament has already enacted a comprehensive legislation on the

same subject called COTPA. Tobacco industry is a controlled industry under the

Union being covered by Entry-52 of List-I of the 7th Schedule to the Constitution

of India. Therefore, State legislature is denuded of its power to legislate on

matters covered by COTPA in view of Article 246(1) of the Constitution of India.

It is also contended that the provisions of the Assam Health Act are repugnant to

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COTPA and therefore void by operation of Article 254(1) of the Constitution of

India.

7. Further contention of the petitioners is that the Assam Health Act has

encroached upon the legislative domain of the Union by enacting the said Act

when the Union had already enacted COTPA. Another contention of the

petitioners is that the Assam Health Act is also in derogation of the provisions

contained in Part-III of the Constitution, particularly, Articles 14, 19(1)(g) and 21

thereof. The complete prohibition imposed by the Assam Health Act on the entire

non-smoking tobacco industry is arbitrary, discriminatory and whimsical.

8. State of Assam in the Health and Family Welfare Department has filed an

affidavit. It is stated that consumption of smokeless tobacco is one of the leading

causes of oral cancer in the country. As per Global Adult Tobacco Survey, 2010

India Report, in Assam, 39.3% adults currently use some form of tobacco.

Around 32.7% adults consume smokeless tobacco like gutka, khaini, zarda and

other chewing tobacco products. Because of easy availability of chewing tobacco

products like gutka, it has become a serious health hazard causing cancer in

different parts of the body which is showing a rising trend. It is in this context

that Assam Health Act was passed by the Assam Legislative Assembly on

19.07.2013 which received the assent of the Governor on 08.02.2014 and which

was notified on 11.02.2014.

9. Referring to Article 47 of the Constitution of India, it is contended that

State has a bounden duty to have due regard towards improvement of public

health. State has the power to prohibit a trade which is illegal or immoral or

injurious to health and welfare of the public. It is further contended that as per

Entry-6 of List-II of the 7th Schedule to the Constitution of India, State legislature

has exclusive power to make laws regarding public health and sanitation for the

State of Assam. Therefore, it is contended that Assam Legislative Assembly has

the legislative competence to enact the Assam Health Act. Denying that there is

any repugnancy vitiating the Assam Health Act, it is contended that both the

Central and the State Government were guided by Article 47 of the Constitution

of India; while the Union Parliament has exercised regulatory power towards

consumption of tobacco products, State of Assam has imposed a complete

prohibition on manufacture, advertisement, trade, storage, distribution, sale and

consumption of products containing chewing tobacco. It has been denied that

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Assam Health Act is arbitrary or discriminatory and that it violates any

fundamental right of anybody either to manufacture or to consume chewing

tobacco.

10. Petitioner company has filed rejoinder affidavit to the counter affidavit

filed on behalf of respondent No.1 disputing the contentions of the State.

11. Mr. D.K. Mishra, learned Senior counsel appearing for the writ petitioners,

has at the outset strenuously argued that the Assam legislature lacked legislative

competence to enact the Assam Health Act. He submitted that the extent and

power of legislation is provided under Articles 245 and 246 of the Constitution of

India and the three lists provided in the 7th Schedule to the Constitution are only

fields of legislation in which legislation can be made by the competent legislature

in consonance with the power conferred by Article 246 of the Constitution.

Referring to Entry 24 of List-II in the 7th Schedule, he submitted that ordinarily

industry is in the field of State legislation but if the industry is declared by the

Union as a controlled industry, then it would fall within Entry-52 of List-I in which

case the industry or industries so declared would get transplanted to List-I

thereby denuding the State the competence to make any law with respect to

such controlled industry under Entry 24 of List-II. Therefore, when Parliament

enacted COTPA, tobacco industry became a controlled industry under the control

of the Union and State legislatures including Assam Legislative Assembly have

been rendered incompetent to make a law on the same subject in the teeth of

the parliamentary legislation on any of the fields available under List-II and List-

III in view of Article 246(3) of the Constitution. In this connection, learned Senior

counsel has placed reliance on the following decisions:-

(1) Ch. Tika Ramji Vs. State of UP = AIR 1956 SC 676,

(2) Calcutta Gas Co. Vs. State of WB = AIR 1962 SC 1044,

(3) H.R. Banthia Vs. Union of India = (1969) 2 SCC 166,

(4) M/s. Hoechst Pharmaceuticals Ltd. Vs. State of Bihar =

(1983) 4 SCC 45,

(5) State of AP Vs. Mc.Dowell & Co. = (1996) 3 SCC 709,

(6) TMA Pai Foundation Vs. State of Karnataka = (2002) 8

SCC 481,

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(7) ITC Ltd. Vs. Agricultural Produce Market Committee =

(2002) 9 SCC 232.

12. Further submission of Mr. Mishra is that in view of Article 254 of the

Constitution of India read with Entry-33 List-III, there is clear repugnancy of the

Assam Health Act with the COTPA in so far trade and commerce, supply and

distribution of smokeless tobacco is concerned. Subject-matter of both the Acts is

the tobacco industry which is a controlled industry under the Union. Both the

Acts operate on the products of tobacco industry but in view of apparent

repugnancy of the Assam Health Act, the same has been rendered redundant

and inoperative. In this connection, learned Senior counsel has relied upon the

following decisions:-

(1) MP AIT Permit Owners Assn. Vs. State of MP =

(2004) 1 SCC 320,

(2) State of West Bengal Vs. Committee for Protection of

Democratic Rights = (2010) 3 SCC 571,

(3) UCO Bank Vs. Deepak Debbarma = (2017) 2 SCC

585.

13. The last limb of argument of Mr. Mishra is that under COTPA, all tobacco

products including chewing tobacco and smoking tobacco have been treated as

one class of product of a controlled industry whereas under the Assam Health

Act, while permitting manufacture, sale and consumption of smoking tobacco,

State has denied the same opportunity of trade and commerce to the petitioners

in chewing tobacco products thereby violating Articles 14 and 19(1)(g) of the

Constitution. Smokeless tobacco is claiming equal protection of law to carry on

business in chewing tobacco. Assam Health Act when viewed in the context of

the national legislative policy covered by COTPA brings home the point of

invidious discrimination against one type of tobacco product without any

intelligible differentia on the pretext of public health.

14. On the other hand, Mr. D. Saikia, learned Senior Additional Advocate

General, Assam appearing on behalf of the State has extensively referred to

Article 47 of the Constitution and Entry-6 of List-II of the 7th Schedule in support

of his contention that Assam Health Act has been enacted keeping in mind the

larger interest of public health. Article 47 and Entry-6 of List-II clearly empower

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the State legislature to enact the Assam Health Act and therefore it cannot be

said that State has no power or legislative competence to enact the Assam

Health Act. He, therefore, submits that there is no conflict between COTPA and

Assam Health Act. The main purpose or object of the Assam Health Act is to

protect public health and to that extent it only supplements COTPA. At the most,

there might be incidental encroachment but that by itself will not render the

Assam Health Act unconstitutional. He submits that the State cannot remain a

mute spectator to the health hazard and high incidents of oral cancer because of

widespread use of chewing tobacco which is readily and easily available in the

market. He further submits that nobody can claim to have a fundamental right to

carry on trade or business in harmful objects, such as, smokeless tobacco.

Likewise, it is the right of the State to change its policy from time to time keeping

in mind the public health which cannot be questioned. In support of his

submissions, Mr. Saikia has placed reliance on the following decisions:-

(1) State of UP Vs. M/s. Synthetics and Chemicals Ltd

= (1980) 2 SCC 441,

(2) Municipal Council, Ratlam Vs. Shri Vardichan

= (1980) 4 SCC 162,

(3) Khoday Distilleries Ltd Vs. State of Karnataka

= (1995) 1 SCC 574,

(4) State of Punjab Vs. Ram Lubhaya Bagga = (1998) 4

SCC 117

(5) Siddhartha Sarkar Vs. State of Assam = 2007 (3) GLT

715,

(6) Rajiv Sarin Vs. State of Uttarakhand = (2011) 8 SCC

708.

15. Mr. S. Dutta, learned Senior counsel appearing for the PIL petitioner,

strongly supports the arguments advanced by Mr. Saikia, learned Senior

Additional Advocate General, Assam. He submits that the Assam Health Act is a

welcome piece of legislation and does not suffer from any infirmity. He

particularly relies upon a decision of the Bombay High Court in Sai Traders Vs.

State of Goa decided on 07.06.2006 which upheld the constitutionality of Public

Health (Amendment) Act, 2005 amending the Goa Public Health Act, 1985

whereby any substance or article of food containing tobacco or any other

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ingredients of tobacco including cigarette, pan masala, gutka, etc, were

prohibited from being stored, stocked, sold, distributed, exhibited or consumed

by any person within a distance of 50 meters from educational institutions,

religious places, health institutions, etc by rejecting the challenge made that the

amendment Act encroached upon the parliamentary legislation COTPA.

16. In response, Mr. Mishra vehemently argued that contention of Mr. Saikia,

learned Senior Additional Advocate General that source of power for enacting the

Assam Health Act is traceable to Entry-6 of List-II and Article 47 of the

Constitution is totally flawed. The three Lists in the 7th Schedule are not source of

power to legislate. Power to legislate is traceable to Article 246 of the

Constitution. Entries in the three Lists only provide fields over which the relevant

legislature can make laws subject to limitation on the power to make law under

Article 246. Parliament has already enacted COTPA which is covered by Entry 52

of List-I and therefore the controlled industry of tobacco would be covered by

List-I thereby denuding the Assam legislature of its power to legislate on the

subject of controlled industry, i.e., tobacco industry. In so far tobacco is

concerned, learned Senior counsel submits that it would be wrong to equate

tobacco with intoxicating liquors and drugs. Supreme Court has clarified that

products of tobacco industry are not res extra commercium. By applying the test

of pith and substance, it is evident that Assam Health Act directly and

substantially deals with manufacture and production of tobacco products

including its trade and commerce, etc, which is referable to Entry-52 of List-I and

Entry-33 of List-III. The aforesaid fields are fully and comprehensively occupied

by COTPA which has been enacted by the Parliament under Article 246(1) of the

Constitution. Therefore, there is wholesale encroachment by the Assam Health

Act into the field occupied by COTPA and question of incidental encroachment

does not arise. Further submission of Mr. Mishra is that when a statute is

questioned on the ground of legislative competence, State cannot claim

legitimacy for enacting the impugned legislation with reference to any provision

in Part-IV of the Constitution, such as, Article 47. In support of his submissions,

Mr. Mishra has placed reliance on the following decisions:-

(1) Koluthara Exports Ltd. vs. State of Kerala = (2002) 2 SCC

459,

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(2) Union of India Vs. Shah Gobardhan L Kabra Teachers’

College = (2002) 8 SCC 228,

(3) Godawat Pan Masala Products IP Ltd. Vs. Union of India =

(2004) 7 SCC 68,

(4) State of Kerala Vs Mar Appraem Kuri Co. Ltd = (2012) 7

SCC 106.

17. Submissions made by learned counsel for the parties have received the

due consideration of the Court.

18. Before proceeding further, it would be appropriate to examine the

relevant provisions of the two Acts. Since COTPA was enacted at earlier point of

time, the same is taken up first.

19. Preamble to COTPA says that it is an Act to prohibit advertisement and to

provide for regulation of trade and commerce in, and production, supply and

distribution of cigarettes and other tobacco products and for matters connected

therewith or incidental thereto. The broad objective of COTPA is discernible from

the preamble itself. There are two objectives of this Act. The first objective is to

prohibit advertisement of cigarettes and other tobacco products. The second

objective is to regulate trade and commerce in cigarette and other tobacco

products as well as production, supply and distribution thereof. The preamble

indicates India’s commitment to implement global measures to ensure that

effective protection is provided to non-smokers from involuntary exposure to

tobacco smoke and to protect children and young people from being addicted to

the use of tobacco. Having regard to the objective of Article 47 of the

Constitution of India and in order to enact a comprehensive law on tobacco in

the public interest and to improve the public health, COTPA was enacted by the

Parliament which received the assent of the President on 18.05.2003 and was

published in the Gazette of India on 19.05.2003.

20. Section 2 makes a declaration that it is expedient in the public interest

that the Union should take under its control the tobacco industry.

21. Section 3 is the definition section. Section 3 (k) defines “production” as

under:-

“(k) “production”, with its grammatical variations and cognate expressions, includes the making of cigarettes,

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cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah tobacco, chewing tobacco, pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called) or snuff and shall include-

(i) packing, labeling or re-labelling, of containers; (ii)re-packing from bulk packages to retail packages; and

(ii) the adoption of any other method to render the tobacco product marketable;”

22. As per section 3 (p), “tobacco products” have been defined to mean the

products specified in the Schedule. 10 products are mentioned in the Schedule as

under:-

“1. Cigarettes, 2. Cigars, 3. Cheroots,

4. Beedis, 5. Cigarette tobacco, pipe tobacco and hookah tobacco, 6. Chewing tobacco, 7. Snuff, 8. Pan masala or any chewing material having tobacco as one

of its ingredients (by whatever name called), 9. Gutka, 10. Tooth powder containing tobacco.”

23. As per section 4, no person shall smoke in any public place. Public place

is defined in Section 3 (l), though as per the proviso, there is provision for

smoking area or space in hotels, restaurants and airports.

24. Section 5 prohibits advertisement of cigarettes and other tobacco

products. Section 6 says that no person shall sell, offer for sale or permit sale of

cigarettes or any other tobacco products – (a) to any person who is under

eighteen years of age, and (b) in an area within a radius of one hundred yards of

any educational institution.

25. Sections 7 to 10 deal with restrictions in trade and commerce in and

production, supply and distribution of cigarettes and other tobacco products.

Such trade and commerce in and production etc. in tobacco products would not

be permitted unless the specified pictorial warning is provided in the packaging

of cigarettes and other tobacco products. Every packet of cigarette or other

tobacco products should indicate the nicotine and tar contents on each cigarette

or on other tobacco produces alongwith the maximum permissible limits thereof.

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26. Sections 12, 13 and 14 deal with the power to enter and search, power to

seize and power of confiscation in case of contravention of any of the provisions

of COTPA.

27. Sections 20, 21, 22 and 24 provide for punishment for violation of various

provisions of COTPA. As per Section 20(1), any person who produces or

manufactures cigarettes or tobacco products which do not contain, either on the

package or on the label, the specified warning and the nicotine and tar contents,

shall be publishable with imprisonment for a term which may extend to two years

or with fine which may extend to five thousand rupees, or with both, in the case

of first conviction; for the second and subsequent convictions, it would be

imprisonment for a term which may extend to five years and with fine which may

extend to ten thousand rupees. Sub-Section (2) of Section 20 says that persons

selling or distributing cigarettes or tobacco products which do not contain the

specific warning and the nicotine and tar contents either on the package or on

the label, shall be punished with imprisonment for a term which may extend to

one year or with fine which may extend to one thousand rupees or with both in

the case of first conviction; for second and subsequent convictions, the term of

imprisonment may extend to two years with fine which may extend to three

thousand rupees.

28. As per Section 21, whoever contravenes the provisions of section 4 i.e.,

smoking in public place, shall be punished with fine which may extend to two

hundred rupees. Sub-Section (2) says that an offence under the said section shall

be compoundable and shall be tried summarily.

29. In case of contravention of Section 5, Section 22 says that punishment

shall be imprisonment for a term which may extend to two years or with fine

which may extend to one thousand rupees or with both in case of first conviction

and in case of second and subsequent convictions, the term of imprisonment

may extend to five years and with fine which may extend to five thousand

rupees.

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30. For violation of Section 6, Section 24 provides for punishment with fine

which may extend to two hundred rupees with the clarification that all offences

under Section 6 shall be compoundable and shall be tried summarily.

31. Section 27 makes it clear that notwithstanding anything contained in the

Code of Criminal Procedure, 1973, an offence punishable under COTPA shall

be bailable. As per Section 28(1), an offence under Section 4 or Section 6 is

compoundable.

32. Thus, from an overall assessment of COTPA, what is discernible is that

this Act does not make any distinction between smoking tobacco and chewing

tobacco. In fact, this is a comprehensive piece of legislation on all tobacco

products including cigarettes, chewing tobacco, pan masala, gutka etc. In other

words, this Act covers both smoking tobacco and chewing tobacco. While COTPA

prohibits advertisement of cigarettes and other tobacco products, it regulates

trade and commerce in cigarettes and other tobacco products including

production, supply and distribution thereof. However, COTPA also prohibits

smoking in public places and selling of cigarettes and other tobacco products to

persons below 18 years of age and in an area which is within a radius of one

hundred yards of any educational institution. For violation of various provisions

of COTPA various penalties are prescribed but the bottom line is that most of the

first time offences are compoundable and all offences punishable under COTPA

have been made bailable.

33. Proceeding to the Assam Health Act, its preamble says that it is an act to

improve public health and prevent incidence of cancer and other health hazards

and addictions among the people of the State and for matters connected

therewith or incidental thereto. Its objective is to enact a comprehensive law on

smokeless and chewing tobacco in the public interest and to protect public

health. The second part of the preamble makes the intention of the Assam

Legislature explicit in as much as it is stated that it is expedient to prohibit

manufacturing, advertisement, trade, storage, distribution, sale and consumption

of zarda, gutka, pan masala containing tobacco and/or nicotine and various types

of smokeless and chewing tobacco with a view to improve public health as per

mandate of Article 47 of the Constitution and to make violation of such

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prohibition a penal offence. Section 2 is the definition clause. As per Section 2

(e), “manufacture” has been defined to mean as under:-

“(e) “manufacture”, with its grammatical variations and cognate expressions, includes the manufacturing of all forms of chewing and smokeless tobacco and/or nicotine products, zarda, gutkha pan masala or any chewing materials having tobacco and/or nicotine as one of its ingredients, by whatever name called.”

34. Likewise, “tobacco” has been defined under Section 2 (h) to mean

smokeless and chewing tobacco only and is defined as under:-

“(h) “tobacco” means smokeless and chewing tobacco and tobacco products and includes leaves and other vegetative parts of Nicotina-Tabacum, commonly known as tambaku, dhapat, zarda or by any other name or names in all its variants in solid or any other form and all types of chewing and smokeless tobacco and tobacco products including gutkha, pan masala and other chewing material having tobacco as one of its ingredients, by whatever name called, tooth powder containing tobacco and any other product which may be notified by the Government, for the purpose of this Act,”

35. Section 4 is the key section and it prohibits manufacturing,

advertisement, storage, distribution, sale and consumption, including possession

of zarda, gutka, pan masala etc. Section 4 is extracted hereunder:-

“ 4. (1) No person shall engage in or purported to be engaged in all or any one of the following acts within the State of Assam:-

(a) manufacturing of Zarda, Gutkha, Panmasala etc. containing

tobacco and/or nicotine and various types of smokeless and chewing tobacco or any of its derivatives in any form;

(b) advertisement of Zarda, Gutkha, Panmasala etc. containing tobacco and/or nicotine and various types of smokeless and chewing tobacco or any of its derivatives in any form;

(c) storage of Zarda, Gutkha, Panmasala etc. containing tobacco and/or nicotine and various types of smokeless and chewing tobacco or any of its derivatives in any form;

(d) trade, distribution including unloading, and sale of Zarda, Gutkha, Panmasala etc, containing tobacco and/or nicotine and various types of smokeless and chewing tobacco or any of its derivatives in any form;

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(e) consumption including possession of Zarda, Gutkha, Panmasala etc. containing tobacco and/or nicotine and various types of smokeless and chewing tobacco or any of its derivatives in any form;

(2) Notwithstanding anything contained in the foregoing provisions, the Government may, by notification, authorise, storage and sale of tobacco for the purpose of medicinal use for any period in any specific place.”

36. Sections 6 and 9 deal with penalties. As per Section 6 (a), whoever

commits any offence as mentioned in Section 4 (1)(a)(b)(c) and (d) shall be

punished with imprisonment for a term which may extend to seven years and

with fine not less than 1 lakh rupees which may extend to 5 lakhs rupees. As per

Section 6 (b), whoever commits any offence as mentioned in Section 4 (e) i.e.

consumption and possession, shall be punished with fine upto Rs.1000 for the

first offence and Rs. 2000 for the second and subsequent offences. In case of

repeat offences [section 6 (c)], the offender would be liable to twice the

punishment which might have been imposed on the first conviction. As per

Section 9 (1), offences under Section 4 (1) (a)(b)(c) and (d) shall be cognizable

and non-bailable whereas an offence committed under Section 4(1)(e) i.e.,

consumption and possession, shall be cognizable and bailable. Sweeping power

of search, seizure and confiscation is provided in Section 7.

37. A careful analysis of the Assam Health Act would indicate that this is an

Act which entirely deals with smokeless and chewing tobacco, such as, zarda,

gutkha, pan masala containing tobacco and/or nicotine etc. This Act not only

prohibits advertisement of smokeless and chewing tobacco but prohibits all

economic activities relating to smokeless and chewing tobacco except for

medicinal purposes. Consequently, manufacturing, advertisement, storage, trade,

distribution, sale and consumption including possession of smokeless tobacco is

prohibited. Punishment proposed for contravention of the above provisions are

very stringent. Barring consumption and possession, which has been made

cognizable and bailable, all other offences have been made cognizable and non-

bailable.

38. Be it stated that the Assam Health Act was passed by the Assam

Legislative Assembly on 19.07.2013; it received the assent of the Governor on

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08.02.2014 and was notified on 11.02.2014. It came into force w.e.f.

20.02.2014. However, we may note at this stage, that presidential assent for the

Assam Health Act was not obtained.

39. Article 245 of the Constitution deals with extent of laws made by

Parliament and by the legislatures of the States. Article 245(1) says that subject

to the provisions of the Constitution, Parliament may make laws for the whole or

any part of the territory of India and the legislature of a State may make laws for

the whole or any part of the State. Subject-matter of laws made by Parliament

and by the legislatures of the States are dealt with in Article 246 of the

Constitution. Article 246 is relevant for the present deliberation and is extracted

as under:-

“246. Subject matter of laws made by Parliament and by the Legislatures of States -(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the ‘Union List’).

(2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the ‘Concurrent List’).

(3) Subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List').

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.”

40. Thus, from an analysis of Article 246, it is evident that under Clause (1),

notwithstanding anything contained in Clauses (2) and (3), Parliament has

exclusive power to make laws with respect to any of the matters enumerated in

List-I of the 7th Schedule. Then under Clause (2), notwithstanding anything

contained in Clause (3) and subject to Clause(1), legislature of any State has the

power to make laws with respect to any of the matters enumerated in List-III of

the 7th Schedule. As per Clause (3), subject to Clauses (1) and (2), legislature of

any State has exclusive power to make laws enumerated in List-II of the 7th

Schedule.

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41. Proceeding to the 7th Schedule, we may note the relevant entries in the

different Lists. Entry-7 of List-I mentions industries declared by Parliament by law

to be necessary for the purpose of defence or for the prosecution of war. Entry

52 of List-I, which is relevant, mentions industries, the control of which by the

Union is declared by Parliament by law to be expedient in the public interest. The

last of the relevant entries of List-I is Entry-84, which mentions duties of excise

on tobacco and other goods manufactured or produced in India except alcoholic

liquors for human consumption, opium, Indian hemp and other narcotic drugs

and narcotics but including medicinal and toilet preparations containing alcohol

or any substance, such as, opium, narcotic drugs, etc.

42. Entry-24 of List-II mentions industries subject to the provisions of Entry-7

and Entry-52 of List-I. Entry-26 deals with trade and commerce within the State

subject to the provisions of Entry-33 of List-III and Entry-27 deals with

production, supply and distribution of goods subject to the provisions of Entry-33

of List-III. Entry-33 of List-III deals with trade and commerce in, and the

production, supply and distribution of products of any industry where the control

of such industry by the Union is declared by Parliament by law to be expedient in

the public interest and imported goods of the same kind as such products, etc.

43. In H.R. Banthia (supra), Supreme Court held that entries in the three

Lists are only legislative heads or fields of legislation and they demarcate the

area over which the appropriate legislature can operate. However, legislative

entries must be given a large and liberal interpretation, the reason being that

allocation of subjects to the Lists is not by way of any scientific or logical

definition but is a mere enumeration of broad and comprehensive categories.

44. This position is reiterated in TMA Pai Foundation (supra) wherein it was

categorically held that various entries in the three Lists of the 7th Schedule are

not powers of legislation but field of legislation. These entries are mere

legislative heads and demarcate the area over which the appropriate legislatures

are empowered to enact law. The power to legislate is given to the appropriate

legislature by Article 246 and other Articles. It is Article 246 and other Articles

which either empower the Parliament or State legislature to enact law and not

entries finding place in the three Lists of the 7th Schedule. Thus, the function of

entries in the three Lists of the 7th Schedule is to demarcate the area over which

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the appropriate legislatures can enact laws but do not confer power either on

Parliament or the State legislatures to enact laws.

45. In ITC Ltd. (supra), Supreme Court held that it is a settled principle of

interpretation that entries in the Lists in the 7th Schedule do not provide

competence or power to legislate on the legislature for which the source of

power is contained in Article 246 of the Constitution. The entries only demarcate

the legislative field of the respective legislature and do not confer legislative

power as such.

46. We have already noticed the relevant entries in the three Lists including

Entry 24 of List-II which deals with industries subject to the provisions of Entry 7

and Entry 52 of List-I.

47. In Choudhury Tika Ramji (supra), Supreme Court was of the view that

industry in the wide sense of the term would be capable of comprising three

different aspects – (i) raw materials which are an integral part of the industrial

process, (ii) process of manufacture of production, and (iii) distribution of the

products of the industry. Raw materials would be the goods which would be

comprised in Entry 27 of List-II. Process or manufacture of production would be

comprised in Entry 24 of List-II except where industry is a controlled industry

when it would fall within Entry 52 of List-I and products of the industry would

also be comprised in Entry 27 of List-II except where they are the products of a

controlled industry when they would fall within Entry 33 of List-III.

48. In Calcutta Gas Co. (supra), a Constitution Bench of the Supreme Court

held that ordinarily industry is in the field of State legislation but if Parliament by

law makes a relevant declaration, industry so declared would be taken off from

its field and passed on to Parliament.

49. In the case of Mc.Dowell (supra), Supreme Court held that the power to

make a law with respect to “industries” lies with the States (Entry 24 of List-II)

but the said entry is made expressly subject to the provisions of Entries 7 and 52

in List-I. It means that if Parliament declares by law that it is expedient in the

public interest to take over control of a particular industry or industries, such

industry or industries would then be transplanted to List-I. In other words, in

respect of the industry or the industries Parliament makes a declaration

contemplated under Entry 52 in List-I, the States are denuded of the power to

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make any law with respect to such controlled industry or industries under Entry

24 List-II.

50. Reverting to COTPA, Section 2 thereof makes a categorical declaration

that it is expedient in the public interest that the Union should take under its

control the tobacco industry. Therefore, tobacco industry which ordinarily would

have been covered by Entry 24 of List-II, stood transplanted to Entry 52 of List-I

whereafter it became the exclusive domain of the Parliament to make law on the

transplanted subject and in the process denuding the States of their legislative

power to make law on such subject.

51. Viewed from such a perspective, it is evident that Assam Legislative

Assembly did not have legislative competence to enact the Assam Health Act in

the teeth of enactment of COTPA by the Union Parliament. As already discussed

above, COTPA only prohibits advertisement but regulates other industrial

activities relating to tobacco, both smoking as well as smokeless and chewing

tobacco though smoking in public places and selling of tobacco products to

minors and near educational institutions have been prohibited. On the other

hand, Assam Health Act has completely prohibited entire industrial activity

relating to smokeless and chewing tobacco which is otherwise permitted and

regulated by COTPA, a law framed by Parliament in exercise of powers under

Article 246(1) of the Constitution.

52. Article 254 of the Constitution deals with inconsistency between laws

made by Parliament and laws made by the legislatures of States. Article 254

reads as under:-

“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States:

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with



23

respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”

53. A careful analysis of Article 254 would reveal that if any provision of law

made by the legislature of a State is repugnant to any provision of a law made

by Parliament which Parliament is competent to enact, then the law made by

Parliament shall prevail and the law made by the legislature of the State to the

extent of the repugnancy shall be void.

54. At this stage, we may revert back to Entry 33 of List-III which amongst

others mentions trade and commerce in, and the production, supply and

distribution of products of any industry where the control of such industry by the

Union is declared by Parliament by law to be expedient in the public interest.

55. Subject-matter of COTPA and Assam Health Act is tobacco industry; while

COTPA covers the entire gamut of tobacco industry including smoking tobacco,

like cigarettes, and smokeless and chewing tobacco, like Gutka, Pan Masala, etc,

Assam Health Act exclusively covers smokeless and chewing tobacco. We have

noted that tobacco industry is a controlled industry and both the Acts operate on

the products of tobacco industry, i.e., a field mentioned in Entry 33 of List-III.

56. We have already discussed the salient features of COTPA, which regulates

trade and commerce in, and the production, supply and distribution of cigarettes

and other tobacco products whereas under the Assam Health Act, all such

activities is prohibited. Assam Health Act prohibits activities relatable to the

tobacco industry which are otherwise legitimate and controlled by the Central

legislation, i.e., COTPA. We have also noticed that while under COTPA,

contravention of the provisions thereof may lead to penal consequences which

are much moderate in comparison to the harsh penalties provided under the

Assam Health Act. Under COTPA, an offence punishable under the said Act is

bailable and most of the offences are compoundable. On the other hand, under

the Assam Health Act, barring the offence of consumption and possession, which

is bailable, other offences are non-bailable. Therefore, we are reduced to a state

where the two Acts cannot stand or operate together; rather we find that the

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Assam Health Act is in direct conflict with COTPA rendering the same completely

redundant in the State of Assam.

57. In M/ s. Hoechst Pharmaceuticals Ltd. (supra), Supreme Court

analysed the limitations on the legislative powers of the Union and State

legislatures in the context of Article 246 of the Constitution and held as under:-

“38. It is obvious that Article 246 imposes limitations on the legislative powers of the Union and State Legislatures and its ultimate analysis would reveal the following essentials:

1. Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I notwithstanding anything contained in clauses (2) and (3). The non-obstante clause in Article 246(1) provides for predominance or supremacy of Union Legislature. This power is not encumbered by anything contained in clauses (2) and (3) for these causes themselves are expressly limited and made subject to the non-obstante clause in Article 246(1). The combined effect of the different clauses contained in Article 246 is no more and no less than this: that in respect of any matter falling within List I, Parliament has exclusive power of legislation.

2. The State Legislature has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II of the Seventh Schedule and it also has the power to make laws with respect to any matters enumerated in List III. The exclusive power of the State Legislature to legislate with respect to any of the matters enumerated in List II has to be exercised subject to clause (l) i.e. the exclusive power of Parliament to legislate with respect to matters enumerated in List I. As a consequence, if there is a conflict between an entry in List I and an entry in List II which is not capable of reconciliation, the power of Parliament to legislate with respect to a matter enumerated in List II must supersede pro tanto the exercise of power of the State Legislature.

3. Both Parliament and the State Legislature have concurrent powers of legislation with respect to any of the matters enumerated in List III.”

58. Thus, Supreme Court held that in respect of any matter falling within List-

I, Parliament has exclusive power of legislation. The exclusive power of the State

legislature to legislate with respect to any of the matters enumerated in List-II

has to be exercised subject to exclusive power of Parliament to legislate with






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respect to matters enumerated in List-I. If there is any conflict between an entry

in List-I and an entry in List-II which is not capable of reconciliation, power of

Parliament to legislate with respect to a matter enumerated in List-II must

supersede pro tanto exercise of power of the State legislature.

59. Elaborating further, Supreme Court held that the non-obstante clause

employed in Clause (1) of Article 246 and the use of the expression “subject to

Clauses (1) and (2)” in Article 246 (3) lay down the principle of federal

supremacy, namely, that in case of inevitable conflict between Union and State

powers, Union power as enumerated in List-I shall prevail over the State power

as enumerated in Lists-II and III. However, Supreme Court sounded a note of

caution by saying that the principle of federal supremacy cannot be resorted to

unless there is irreconcilable conflict between the entries in the Union and the

State List. This position is reiterated in Committee for Protection of

Democratic Rights (supra).

60. In the case of Deepak Debbarma (supra), Supreme Court has held that

repugnancy or inconsistency between a Central enactment and State enactment

can take place in two situations. Firstly, in a case where Central and the State

laws are on any field of entry mentioned in List-III. Secondly, between a Central

law under List-I and the State law relatable to List-II. In the first case, Article

254 shall apply and in the second case, endeavour would be to see if the conflict

can be resolved by acknowledging mutual existence of the two legislations. If

that is not possible, then by virtue of the provisions contained in Article 246 (1)

of the Constitution, the Parliamentary legislation would prevail and the State

legislation will have to give way.

61. Finally, in MP AIT Permit Owners Association (supra), Supreme Court

held that when the offences arising out of the Union law and the State law

respectively are substantially identical but additional penalties are imposed for

the contravention by the provisions of the State law, it would be inconsistent

with the law of the Union and therefore invalid.

62. Thus, from the above discussion, what comes to the fore is that not only

the Assam Legislative Assembly lacked legislative competence to have enacted

the Assam Health Act but the said Act also suffers from the vice of repugnancy

vis-à-vis the Central Act, namely, COTPA and therefore cannot be sustained.

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63. State has sought to defend the legitimacy of the Assam Health Act by

referring to Entry 6 of List-II and Article 47 of the Constitution. In fact, Mr.

Saikia, learned Sr. Addl. Advocate General vehemently argued that the State

legislature has the legislative competence to enact the Assam Health Act on the

strength of Entry 6 of List II and Article 47 of the Constitution.

64. Coming to Entry 6 of List 2, it reads as under:-

“Public health and sanitation; hospitals and dispensaries”.

65. We have already discussed above by referring to various Supreme Court

judgments that entries in the three lists of the 7th Schedule are not the source of

power for legislation. The power to legislate is contained in Article 246 of the

Constitution and the entries in the three lists broadly lay down or demarcate the

field of legislation. Therefore, Entry 6 of List-II neither confers power on the

State legislature nor does it limit the power of Parliament to legislate. Parliament

having already enacted a law on the subject “tobacco industry” under Entry 52 of

List 1 i.e. COTPA, Assam Legislature stood denuded of its power to legislate on

the subject of the controlled industry i.e. “tobacco industry”. Article 246 (3) does

not permit exercise of such power by the Assam legislature. While examining the

challenge to cancellation of licence in respect of a distillery manufacturing

rectified spirit, Supreme Court in Bihar Distil lery Vs Union of India reported

in (1997) 2 SCC 727 had categorically observed that Entry 6 of List II which

speaks of public health is relevant only for the reason that it furnishes a ground

for prohibiting consumption of intoxicating liquors. In this judgment also, it was

clearly held that when Parliament makes a declaration in terms of Entry 52 of

List-I, the States are denuded of their power to legislate with respect to those

industries on that account. Therefore, Entry 6 of List II cannot be interpreted in a

manner to confer legislative power on the State thereby rendering Entry 52 of

List I redundant. By applying the test of pith and substance, we can find out the

true purport and character of the Assam Health Act which is nothing but an Act

on the tobacco industry more particularly on smokeless and chewing tobacco

which field is already occupied by the central legislation i.e. COTPA. In pith and

substance, the Assam Health Act is directly in the field of tobacco industry which

is a controlled industry under Entry 52 of List I. We have already seen that

COTPA permits trade and commerce in tobacco though in a regulated manner,

27

whereas the Assam Health Act completely prohibits the same. Therefore, there is

no incidental encroachment here; rather there is wholesale encroachment by the

Assam Health Act into the domain covered by COTPA. As such, reliance placed

on Entry 6 of List II by the State is misplaced, which does not confer any

legitimacy to the Assam Health Act.

66. State has also sought to justify the Assam Health Act by placing reliance

on Article 47 of the Constitution, which is one of the directive principles of State

policy. According to Article 47, the State shall regard the raising of the level of

nutrition and the standard of living of its people and improvement of public

health as amongst its primary duties and in particular the State shall endeavour

to bring about prohibition in the consumption of intoxicating drinks and drugs

which are injurious to health; except for medicinal purposes.

67. Suffice it to say, Article 47 is not a source of legislative power. It is only a

guiding principle for the State in the governance of the country. Without dilating

on the harmful effects of tobacco, both smoking and non-smoking, it has to be

admitted that Article 47 talks about prohibiting consumption of intoxicating drinks

and drugs which are injurious to health; tobacco is conspicuous by its absence.

In Koluthara Export Ltd. (supra) Supreme Court has held that Part-IV of the

Constitution contains fundamental principles in the governance of the country;

they indicate and determine the directions for the State but they are not

legislative heads or field of legislation like the entries in Lists I, II and III of the

7th Schedule of the Constitution. When any statue of a State or any provision

therein is questioned on the ground of lack of legislative competence, the State

cannot claim legitimacy for enacting the impugned provision with reference to

the provisions in Part IV of the Constitution.

68. A feeble attempt was made by Mr. Saikia, learned Senior Additonal

Advocate General to say that the State had acted in good faith keeping in view

the larger public interest and public health by prohibiting trade and commerce in

smokeless and chewing tobacco products which power is inherent in the State.

69. We are afraid, we can accept such a sweeping generalization made on

behalf of the State. In Godawat Pan Masala Products (supra), Supreme Court

was considering challenge to notifications issued by the Food (Health) Authority

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under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 by which

the manufacture, sale, storage and distribution of pan masala and gutka were

banned for different periods. Upholding the challenge, Supreme Court was

categorical in saying that there is plethora of legislation dealing with tobacco

products, gutka and pan masala. Licenses are being issued on regular basis to

manufacture the articles concerned. Therefore, it does not lead to the conclusion

that trade or business in the articles concerned is an activity which is “criminal in

propensity, immoral, obnoxious, injurious to the health of general public” or that

outlawing of such products can be the result of “public expediency and public

morality”. To be more specific, Supreme Court posed the question as to whether

consumption of pan masala or gutka or for that matter tobacco itself is

considered inherently or viciously dangerous to health and, if so, is there any

legislative policy to totally ban its use in the country? Supreme Court was

categorical in saying that in the face of COTPA, the answer must be in the

negative. The gamut of legislations enacted in the country which deals with

tobacco does not suggest that Parliament has ever treated it as an article res

extra commercium; it is not possible to accept that the article has been treated

as res extra commercium. The legislative policy, if any, seems to be to the

contrary. Therefore, unlike intoxicating drinks, trade and commerce in tobacco

cannot be said to be res extra commercium.

70. In so far the decision of the Bombay High Court in Sai Traders (supra) is

concerned, which was relied upon by Mr. S. Dutta, learned Senior counsel for the

PIL petitioner, we find that facts of that case are clearly distinguishable. Section

87B of the Goa Public Health Act, 1985, which was inserted by the Goa Public

Health (Amendment) Act, 2005 prohibits any substance or article of food

containing tobacco or any other ingredients of tobacco including cigarettes, pan

masala, gutka etc from being manufactured, sold, stored, stocked or distributed

or exhibited for sale or consumed by any person within a distance of 50 meters

from educational institutions, religious places, hospitals etc. Therefore, unlike the

Assam Health Act, there is no complete prohibition of tobacco products under the

Goa Public Health Act, 1985, as amended. As such, the said decision would not

be applicable to the present case.

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71. Thus, in view of the conclusion reached, we are of the view that it may

not be necessary to deliberate upon the other grounds of challenge put forward

by the petitioners.

72. Therefore, sum total of the above discussion is that we are unable to

sustain the constitutionality of the Assam Health (Prohibition of Manufacturing,

Advertisement, Trade, Storage, Distribution, Sale and Consumption of Zarda,

Gutkha, Panmasala etc. containing Tobacco and/or Nicotine) Act, 2013.

73. Accordingly, the said Act is declared unconstitutional and void.

74. Resultantly, the four writ petitions are allowed while the PIL is dismissed.

Parties to bear their own cost.

JUDGE JUDGE

Dutt/aparna

w.p.(c) no. 1583/2014

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